Zuce Tech Pty Ltd v Ebert

Case [2024] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

Zuce Tech Pty Ltd v Ebert [2024] QSC 297

PARTIES:

ZUCE TECH PTY LTD
ACN 624 749 257
(plaintiff)

v
GLEN IAN EBERT

(defendant)

FILE NO:

BS 11846/24

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2024

JUDGE:

Freeburn J

ORDERS:

1.   The respondent deliver up to the applicant:

a.   any equipment and stock which is in his possession or control; and

b.   all materials, including copies, reproductions and digital references, in the possession, custody or control of the respondent, which record or contain the whole or any part of the applicant’s business records or confidential information.

2.   Until trial or earlier order, the respondent is restrained from using, copying or disclosing to any person any of the confidential information which is in his possession or control.

3.   Orders 1 and 2 take effect once a formal order has been taken out.

4.   The parties be heard on the form of the order, directions, and costs.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the applicant, a business that provides vehicle tuning services, seeks the return of property from the respondent – where the respondent was a shareholder and general manager of the applicant – where the respondent expressed discontent with the operation of the business – where to establish a new business, the respondent is alleged to have removed equipment, stock and confidential information from the applicant’s premises, and have procured the resignation of the applicant’s employees – whether the criteria for an interlocutory injunction for the return of the property has been satisfied

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SELF-INCRIMINATION PRIVILEGE – where a criminal investigation was initiated against the respondent – where a search warrant was executed on the respondent’s residence – where the respondent exercised his right against self-incrimination – whether the court ordering an interlocutory injunction for the return of the applicant’s property infringes the respondent’s right against self-incrimination

Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, cited
AECI Australia Pty Ltd v Convey[2020] QSC 207, cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, cited
C Plc v P [2007] EWCA Civ 493, applied
Charara v Commissioner of Police (2008) 182 A Crim R 64; [2008] NSWCA 22, applied
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74, applied
Hammond v Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited
Istel Ltd v Tully [1993] AC 45, cited
Lamb v Munster (1882) 10 QBD 110, cited
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, cited
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; [1983] HCA 9, explained
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, explained
Reid…

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AGLC
Zuce Tech Pty Ltd v Ebert [2024] QSC 297
Case
[2024] QSC 297
Decision Date

CaseChat Overview and Summary

Zuce Tech Pty Ltd, the applicant, sought an interlocutory injunction against Ebert, the respondent, who was a former shareholder and general manager of the company. Zuce Tech sought the return of property, including equipment, stock, and confidential information, which it was alleged that Ebert had removed from its premises when establishing a new business. Ebert exercised his right against self-incrimination during a criminal investigation against him. The primary legal issues the court had to decide were whether the criteria for an interlocutory injunction for the return of the property were satisfied and whether ordering such an injunction would infringe Ebert's right against self-incrimination.

The court examined the principles of equity and the law of interlocutory injunctions to determine whether Zuce Tech satisfied the criteria for an interlocutory injunction. The court also assessed the privilege against self-incrimination, its scope, and whether an interlocutory injunction would infringe Ebert's right against self-incrimination. The court concluded that Zuce Tech had satisfied the criteria for an interlocutory injunction for the return of the property, as it had established a serious question to be tried, a prima facie case, and irreparable loss if the injunction was not granted. The court also found that ordering an interlocutory injunction for the return of the property did not infringe Ebert's right against self-incrimination, as it was not compelling him to provide evidence or information that could incriminate him.

The court ordered Ebert to deliver up to Zuce Tech any equipment and stock in his possession or control, as well as all materials recording or containing any part of Zuce Tech's business records or confidential information. Ebert was also restrained from using, copying, or disclosing to any person any confidential information in his possession or control until trial or an earlier order. The court directed that these orders take effect once a formal order had been taken out and that the parties be heard on the form of the order, directions, and costs.

Orders

Orders of the court

1. The respondent deliver up to the applicant:

a. any equipment and stock which is in his possession or control; and

b. all materials, including copies, reproductions and digital references, in the possession, custody or control of the respondent, which record or contain the whole or any part of the applicant’s business records or confidential information.

2. Until trial or earlier order, the respondent is restrained from using, copying or disclosing to any person any of the confidential information which is in his possession or control.

3. Orders 1 and 2 take effect once a formal order has been taken out.

4. The parties be heard on the form of the order, directions, and costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the text Zuckerman on Australian Civil Procedure the authors describe the privilege in this way:… It provides immunity from being compelled to provide evidence or information of a self-incriminating potential. A person is not bound to answer any question or produce any document if to do so would tend to expose that person to proceedings for a criminal offence or exposure to a civil penalty.[49] [emphasis added][49]Zuckerman on Australian Civil Procedure (supra), [18.1]. The authority for the first sentence is Accident Insurance Mutual Holdings (supra). Here, again, the focus is on evidence or information. There is no reliance on the concept of a ‘document or thing’. That survey of the privilege shows that there are authoritative statements based on the first quote from Gibbs CJ in Sorby that enable a person entitled to the benefit of the privilege to refuse to answer questions and to refuse to produce any ‘document or thing’. But there are also other authoritative statements that do not refer to the concept of a ‘document or thing’ but instead define the privilege as excluding evidence or information or documents. Importantly, in none of the cases discussed thus far, did the courts directly define or consider the boundaries of the privilege. And no case to this point considers the breadth of what is contemplated by the expression ‘document or thing’. The word ‘thing’, of course, has an almost unlimited scope. In so far as Gibbs CJ stated that a person may refuse to answer any question or refuse to produce any ‘document or thing’, it is not clear what was contemplated. Possibly His Honour had in mind tape recordings or testimony or other records that have the effect of convicting the person out of their own mouth. Possibly wider ‘things’ were contemplated. In any event, the breadth of the expression was not relevant because in Sorby the issue concerned compelling answers to questions put by a Royal Commission. In my view, the authoritative statements of the privilege provide limited guidance on where the boundaries of the privilege should be drawn. In Australia the traditional objection that exists is in allowing the executive to compel a person to convict themselves out of that person’s own mouth.[50] In both Sorby and Reid reliance was placed on Lamb v Munster.[51] There, Stephen J said:The extent of the privilege is I think this: the man may say, “If you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth.”[52][50]Sorby (supra), 294-295. See also Reid (supra), 6.[51](1882) 10 QBD 110, 113.[52]Ibid 113. In the United States, Murphy J listed seven rationales:The privilege against self-incrimination ‘registers an important advance in the development of our liberty -- one of the great landmarks in man's struggle to make himself civilized. It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial, rather than an inquisitorial, system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and requiring the government in its contest with the individual to shoulder the entire load’; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life’; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty’, is often ‘a protection to the innocent’.[53][53]Murphy v Waterfront Commission 378 US 52, (Sup Ct, 1964). See also the discussion of the rationales by Calling Time on the Privilege Against Self-Incrimination (supra) 261-266. Note that the privilege is constitutionally recognised in the United States.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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